Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Hobby Lobby's Implications for Women

Michelle Crotwell Kirtley


By Michelle Crotwell Kirtley

July 14, 2014

The Supreme Court’s recent decision in Burwell vs. Hobby Lobby Stores Inc. has been perceived and portrayed as another frontal assault in “the war on women.” A complex case about religious freedom has been reduced to a battle between the rights of a right-wing evangelical corporation (hardly a sympathetic petitioner in the eyes of many Americans) and the reproductive rights of women. But as some sober-minded publications have noted, such a dramatic characterization of the arguments is unwarranted, although perhaps understandable in light of the intense emotion stirred by any issue related to contraception and abortion. 

In reality, whether or not you believe that making most forms of contraception effectively free will help reduce unintended pregnancy and abortion, the ruling’s impact on these goals and on women’s health more broadly is actually quite limited. Balancing the rights of corporations such as Hobby Lobby against the interests of women does not require picking winners and losers.  Contrary to what you may have heard, the Hobby Lobby ruling is not bad for women. How can this be?

First, the religious freedom arguments made by Hobby Lobby have genuine merit. When the government acknowledges the freedom of various institutions that are not churches, synagogues, or mosques to practice according to their deeply and sincerely held religious beliefs, a pluralistic civil society flourishes. This benefits everyone—including women-- who are served by myriad faith-based organizations that provide vocational training for single mothers, reduce unintended pregnancy, or administrate after-school programs for children, just to name a few. 

Second, because this ruling did not address the substance of the contraceptive mandate, and because of the narrow scope of the decision, it will have little practical impact on broader women’s health, including their access to contraception, the rate of unintended pregnancy, or the number of abortions. Importantly, the decision only applies to “closely held” companies, in which five or fewer individuals own 50 percent or more of the company. This necessarily limits the total number of women affected by the decision. Critics, including Justice Ginsburg in her dissenting opinion, argue that these women will be nonetheless unfairly denied coverage that other women can access. However, the majority opinion does not allow Hobby Lobby to prevent its employees from obtaining contraceptive coverage (that would be a violation of the free exercise rights of the employees); it merely states that the government cannot require Hobby Lobby to pay for that coverage in opposition to its religious beliefs.

The government has several other ways to provide contraceptive coverage for women whose employers claim a religious exemption. In fact, a woman whose employer does not offer contraception coverage can already choose to buy a plan on the federal health care exchange, although the plan may cost more. The government could choose to subsidize health insurance for Hobby Lobby employees who would rather shop on the exchange for a plan that is consistent with their needs and beliefs. The government could even require corporations that claim a religious exemption to the contraceptive mandate to donate the money that it would otherwise spend on contraceptive coverage to organizations and institutions involved in curbing unintended pregnancy and abortion in ways that are consistent with their religious beliefs. 

Which brings us to a more fundamental issue: A range of policy options and the contribution of a variety of people and institutions will be required to address the problem of unintended pregnancy and abortion, which are rooted in problems of income and opportunity disparity, the breakdown of the family as a bedrock social institution, attitudes towards marriage, and a failure to uphold the dignity of women and girls. Offering free contraception to women is not a silver bullet for these socially complex problems. 

Finally, as important as the religious freedom merits of this case are, the issue would have been moot without a major and enduring market distortion-- the existence of the employer health care tax exclusion. In front of the Supreme Court, some women carried signs saying “Birth control: not my bosses’ business,” and I couldn’t agree more. The decision about whether to use contraception and which kind to use is deeply personal and should not have to involve the employer at all. As some employers claim a religious exemption from the contraception mandate, some of their employees—those who want contraception coverage—will have a new incentive to shop around for other health insurance. This could be the beginning of a move away from employer-based healthcare towards a market in which individuals choose health plans that best suit their needs. Greater involvement by patients in their own health coverage decision-making is good for patients and good for the system as a whole.  

Don’t believe everything you hear. Preserving religious liberty is not bad for women. Instead, we all benefit when justice is upheld.

-  Michelle Crotwell Kirtley is the Bioethics & Public Policy Associate at the Center for Bioethics & Human Dignity and a former health and science policy advisor on Capitol Hill.  She is also a Trustee of the Center for Public Justice and a 2003 alumnae of the Center’s Civitas program in faith and public affairs.

“To respond to the author of this Commentary please email:
Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”